ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JON AARSTAD STEVE CARTER
Vanderburgh County Public Defender Agency Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
TIMOTHY MILLER, )
vs. ) No. 82A01-0203-CR-89
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause Nos. 82C01-9501-DF-23 and 82C01-0103-DF-278
February 25, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Timothy Miller and the State bring this consolidated interlocutory
appeal pursuant to Indiana Appellate Rule 14(B) and raise two issues for
1. Whether the trial court erred when it determined that Miller’s
1998 conviction for Operating a Vehicle While Intoxicated
(“OWI”), as a Class A misdemeanor, was void as a matter of law.
2. Whether the trial court erred when it determined that Indiana
Criminal Rule 4(C) does not bar further proceedings on the
charge that resulted in the void 1998 OWI conviction.
FACTS AND PROCEDURAL HISTORY
In January 1995, under Cause Number 82C01-9501-DF-23 (“Cause No.
23”), the State charged Miller with OWI, as a Class D felony. In July
1995, the State and Miller appeared in open court and filed a Sentencing
Recommendation (“plea agreement”), which provided in relevant part that
Miller agreed to plead guilty as charged, and the State accepted his plea.
The plea agreement also recommended that the court: (1) withhold judgment
for a period of three years and place Miller on the Alcohol Intensive
Supervision Program (“AISP”) for three years; (2) impose fees and suspend
Miller’s driver’s license for a period of two years; and (3) enter judgment
as a Class A misdemeanor after Miller’s completion of AISP. That same day,
the court found a factual basis for Miller’s guilty plea, advised Miller of
his rights, and scheduled sentencing for the following month.
In August 1995, Miller appeared with counsel for sentencing, and the
court accepted the terms of the parties’ plea agreement. The court further
ordered that the parties reappear in August 1998 for entry of the withheld
judgment. Three years later, in August 1998, the court found that Miller
had complied with the terms and conditions of AISP and, pursuant to the
plea agreement, entered judgment of conviction to OWI, as a Class A
In March 2001, under Cause Number 82C01-0103-DF-278 (“Cause No.
278”), the State charged Miller with Resisting Law Enforcement, as a Class
D felony, and OWI, both as a Class A misdemeanor and as a Class D felony
enhancement. The basis for the OWI enhancement was Miller’s prior OWI
conviction in Cause No. 23.
In October 2001, Miller filed a Motion to Dismiss the enhancement in
Cause No. 278, arguing that the parties’ plea agreement in Cause No. 23 was
void ab initio under Lighty v. State, 727 N.E.2d 1094 (Ind. Ct. App. 2000).
Miller then filed a Motion to Dismiss Cause No. 23 pursuant to Criminal
Rule 4(C). In particular, Miller argued that because the parties’ plea
agreement was void ab initio, and the State had failed to bring him to
trial on that charge within one year from the date Lighty was decided, any
subsequent trial would violate Criminal Rule 4(C).
In November 2001, the court conducted a hearing on both of Miller’s
motions, during which it heard argument and took the motions under
advisement. The court then denied Miller’s motion to dismiss Cause No. 23,
explaining in relevant part:
The motion [to dismiss Cause No. 23] was filed based upon Lighty v.
State, and secondly upon the claim of the defendant that . . . under
Criminal Rule 4 he had been held more than a year without being
brought to trial. Court finds that in Cause No. 23 that on August 26,
1998, the defendant was convicted of a Class A misdemeanor and at that
point the case was closed satisfactorily, and on . . . September the
11th, 1998, the docket also shows that he was discharged from the
[AISP], and finally on August the 28th, 1995, when the withheld
judgment was entered, or when the order made with regard to there
being a withheld judgment his bond was released and so the Court finds
that under . . . all those circumstances he was not being held under
this case to answer to the charges. For that reason the Court denies
the Motion to Dismiss.
But the court also concluded that under Lighty, Miller’s conviction under
Cause No. 23 is void as a matter of law and, thus, the enhancement portion
of Cause No. 278 could not be based on the Cause No. 23 misdemeanor
conviction. Accordingly, the court granted Miller’s motion to dismiss the
enhancement in Cause No. 278.
Thereafter, both the State and Miller asked the court to certify its
orders in both cause numbers for interlocutory appeal, and the court
complied. This court accepted jurisdiction under Appellate Rule 14(B) and
consolidated the trial court’s orders in Cause No. 23 and Cause No. 278 for
DISCUSSION AND DECISION
Issue One: Withheld Judgment in 1998 OWI Conviction
We have explained that this consolidated appeal involves two orders,
one from which the State appeals and one from which Miller appeals.
Specifically, the State appeals the trial court’s order granting Miller’s
motion to dismiss the enhancement in Cause No. 278, and Miller appeals the
trial court’s order denying his motion to dismiss Cause No. 23. But the
parties agree that if we determine Miller’s conviction in Cause No. 23 is a
nullity, then that conviction cannot serve as the enhancement conviction in
Cause No. 278. Accordingly, we must first address whether Miller’s
misdemeanor conviction in Cause No. 23 is void as a matter of law. Because
the issue presented is a pure question of law, our standard of review is de
novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).
The trial court determined, and Miller agrees, that his 1998 OWI
conviction is void under Lighty, 727 N.E.2d at 1097. Specifically, in its
Order granting the parties’ motions to certify orders for interlocutory
appeal, the trial court stated in relevant part:
Court grants motion to dismiss [the enhancement in Cause No. 278]
based upon [Lighty v. State, 727 N.E.2d 1094 (Ind. Ct. App. 2000)].
Court reasons that if the plea agreement was void in the defendant’s
prior conviction then the plea was void as well. In addition, if the
court does not have authority to withhold a judgment then the court
did not have authority to enter judgment as a Class A misdemeanor.
In Lighty, 727 N.E.2d at 1095, the State charged the defendant with
two counts of Battery, one as a Class A misdemeanor and one as a Class D
felony enhancement. The defendant entered into a plea agreement with the
State wherein he pleaded guilty to battery as an A misdemeanor, and the
parties agreed that the court would withhold judgment for one year. Id.
During the one-year period, the parties agreed that the defendant would be
subject to certain conditions, and if he completed the year without
violating those conditions, the State agreed to dismiss the D felony
battery charge. Id. The court accepted the plea agreement. Id.
Within the one-year period, the State filed a motion entitled “Motion
to Reinstate Judgment,” alleging that the defendant had failed to
successfully complete one of the conditions of his plea agreement. Id. at
1096. Following a hearing, the trial court entered an “Order Revoking
Probation,” where the court found that the defendant had violated the terms
of his plea agreement and ordered him to serve 180 days in jail, in
addition to the balance of his original one-year sentence on probation.
Id. The defendant filed a motion to correct error, which was denied, and
then filed his direct appeal. Id.
On appeal, this court raised the following dispositive issue sua
sponte: whether the parties’ plea agreement was void ab initio. Id. In
our analysis, we first addressed plea agreements in general and noted “that
contracts made in violation of a statute are void and unenforceable.” Id.
at 1096 (citing Sinn v. State, 609 N.E.2d 434, 436 (Ind. Ct. App. 1993),
trans. denied). Next, we stated that “[b]oth the Indiana Code and Indiana
case law provide that trial courts may not withhold judgments.” Id. In
support, we relied on Indiana Code Section 35-38-1-1(a), which provides,
“After a verdict, finding, or plea of guilty, if a new trial is not
granted, the court shall enter a judgment of conviction.” We further cited
three cases in which our court had determined that courts may not withhold
judgments. Lighty, 727 N.E.2d at 1096 (citing King v. State, 720 N.E.2d
1232, 1236 (Ind. Ct. App. 1999); Chissel v. State, 705 N.E.2d 501, 506
(Ind. Ct. App. 1999), trans. denied; Robison v. State, 172 Ind. App. 205,
359 N.E.2d 924 (1977)). And because the parties entered into a plea
agreement that was conditioned on the trial court’s ability to withhold
judgment, we determined that the agreement was a legal nullity and void ab
initio. Id. at 1097. We, therefore, reversed for proceedings consistent
with the opinion. Id.
The State maintains that Lighty was decided incorrectly.
Specifically, the State asserts that: (1) the cases cited in Lighty are
distinguishable from the facts in that case; (2) Lighty erroneously stated
that plea agreements involving withheld judgments are prohibited by Indiana
Code Section 35-38-1-1(a); and (3) Lighty incorrectly stated that plea
agreements that conflict with a statute are void.
Initially, we agree with the State that the facts in Lighty are
distinguishable from those in King, Chissell, and Robison. In King, 720
N.E.2d at 1238-39, the trial court entered judgment as a Class A
misdemeanor and, following a probation revocation proceeding, re-entered
judgment on the same charge as a D felony. In both Chissell, 705 N.E.2d at
505, and Robison, 359 N.E.2d at 924, the trial court withheld judgments
indefinitely. Chissell involved a jury trial, and Robison involved a bench
trial. But regardless of the factual distinctions in those cases, the
relevant rule of law which permeates all four of the decisions is that
trial courts may not withhold judgments. As such, we need not analyze
and compare the facts of King, Chissell, and Robison to the facts in
Lighty. Rather, we move on to the State’s arguments regarding our
interpretation of the judgment of conviction statute, Indiana Code Section
The State first contends that Indiana Code Section 35-38-1-1(a) sets
forth no specific time period within which a court must enter judgment of
conviction and, thus, it does not prohibit withheld judgments. We agree
that the statute’s language does not establish a time limit for entry of
judgment of conviction. But sometimes it is just as important to recognize
what a statute does not say as it is to recognize what it does say.
Schafer v. Sellersburg Town Council, 714 N.E.2d 212, 217 (Ind. Ct. App.
1999), trans. denied. Indiana Code Section 35-38-1-1(a) does not authorize
entry of withheld judgments. Rather, that statute governs judgments of
conviction and unambiguously states, “After a . . . plea of guilty, . . .,
the court shall enter a judgment of conviction.” I.C. § 35-38-1-1(a)
(emphasis added). When the word “shall” appears in a statute, we construe
it as mandatory rather than directory unless it is clear from the context
or purpose of the statute that the legislature intended a different
meaning. Clark v. Kenley, 646 N.E.2d 76, 78 (Ind. Ct. App. 1995), trans.
denied. In addition, the act of withholding judgment is the direct
opposite of entering judgment. Thus, following a plea of guilty, a trial
court lacks authority to withhold judgment and must enter judgment.
We previously stated in Chissell, 705 N.E.2d at 506, that withheld
judgments “find no sanction in the law.” That statement requires
clarification. The phrase “withhold judgment” or “withheld judgment” does
not appear in the criminal code. And as we have established, the judgment
of conviction statute mandates entry of judgment following a plea of
guilty. Nevertheless, our legislature has authorized trial courts, with
the agreement of the State and the defendant, to defer judgment of
conviction following a plea of guilty in certain circumstances. See, e.g.,
Ind. Code § 35-48-4-12 (allows court to defer judgment following plea of
guilty to possession of marijuana or hashish as a Class A misdemeanor and
place person under court’s custody subject to conditions).
In fact, in 2002 our legislature enacted legislation that authorizes a
court having felony, misdemeanor, or juvenile jurisdiction in a city or
county to establish a drug court. See Ind. Code § 12-23-14.5-1 et seq.
Once a drug court has been properly established, Indiana Code Section 12-23-
(a) A drug court may follow the procedure described in this section
(1) a person pleads guilty to an offense in which the use of
alcohol or drugs was a contributing factor or material
element of the offense;
(2) the court refers the person to a drug court;
(3) the prosecuting attorney consents to the referral;
(4) the person who pleads guilty under subdivision (1)
consents to the deferral;
(5) the person who pleads guilty under subdivision (1) is
eligible to participate in the drug court under section
14(b) of this chapter and the drug court accepts the
(6) the person has not had a previous dismissal under this
(b) Notwithstanding IC 35-38-1-1(a), the court, without entering
judgment of conviction, may defer further proceedings and place
the person in the custody of the drug court under conditions as
the court determines.
(c) The court, the prosecuting attorney, and the participant must
all agree upon the duration of the conditions established under
(d) The court after a hearing may enter judgment of conviction if:
(1) the person violates a condition established under
subsection (b); or
(2) the period of time that the conditions are in effect
expires before the person successfully completes each
condition of custody.
(e) The court shall dismiss the charges against the person if the
person fulfills the conditions of the custody established under
We must assume that the legislature is mindful of both court decisions
and existing law. Burke v. Town of Schererville, 739 N.E.2d 1086, 1092
(Ind. Ct. App. 2000), trans. denied. Accordingly, when the legislature
enacted Indiana Code Section 12-23-14.5-15 in 2002, we assume it was
cognizant of our decisions interpreting Indiana Code Section 35-38-1-
1(a). Moreover, we find it significant that the legislature made
specific reference to the judgment of conviction statute and determined
that, despite that statute, drug courts may, following a plea of guilty,
effectively withhold judgments under specific circumstances. Statutes
relating to the same general subject matter are in pari materia and should
be construed together so as to produce a harmonious statutory scheme.
Wilburn v. State, 671 N.E.2d 143, 147 (Ind. Ct. App. 1996), trans. denied.
Here, we harmonize the judgment of conviction statute with those statutes
that allow for deferred judgments by construing the latter statutes as
exceptions to the general rule. Indiana Code Section 35-38-1-1(a) does not
authorize withheld judgments but requires that, following a plea of guilty,
the court shall enter judgment of conviction.
Still, the State asserts that Indiana Code Section 35-38-1-1(a) does
not expressly prohibit parties from agreeing to withhold judgment in a plea
agreement. Again, that statute requires that a court enter judgment of
conviction following a plea of guilty. Despite the State’s arguments to
the contrary, agreements that are conditioned on the court’s ability to
withhold judgment, rather than enter judgment, following a guilty plea are
in violation of the judgment of conviction statute. See Lighty, 727 N.E.2d
at 1097. Accordingly, we turn to the State’s final attack on Lighty,
namely, that not all plea agreements in contravention of a statute are
A plea agreement is a contract, “an explicit agreement between the
State and defendant which is binding upon both parties when accepted by the
trial court.” Baker v. State, 768 N.E.2d 477, 481 (Ind. Ct. App. 2002);
Smith v. State, 717 N.E.2d 239, 241 (Ind. Ct. App. 1999). Once accepted,
the trial court is also bound by the terms of the agreement. Ind. Code §
35-35-1-2. And as we stated in Lighty, 727 N.E.2d at 1096, “It is well
settled that contracts made in violation of a statute are void and
unenforceable.” It follows that a plea agreement, like the agreement in
Lighty and in this case, which requires the trial court, after a plea of
guilty, to withhold judgment rather than enter judgment constitutes a
contract made in violation of Indiana Code Section 35-38-1-1(a). As a
result, such plea agreements are void and unenforceable. Lighty, 727
N.E.2d at 1097.
In support of its assertion that not all contracts made in violation
of a statute are void, the State directs us to Continental Basketball
Ass’n, Inc. v. Ellenstein Enters., Inc., 669 N.E.2d 134 (Ind. 1996);
Norlund v. Faust, 675 N.E.2d 1142, 1150 (Ind. Ct. App. 1997); and Noble v.
Alis, 474 N.E.2d 109 (Ind. Ct. App. 1985), trans. denied. Those cases
recognize that our courts sometimes apply a balancing test to determine
whether a contract that contravenes a statute is void. Continental
Basketball, 669 N.E.2d at 140-41. But we do not find those cases
persuasive because they address private contracts, not plea agreements. In
addition, our supreme court in Continental Basketball stated that as a
general matter, where a contract contravenes a statute “the court’s
responsibility is to declare the contract void rather than apply the
balancing test.” Id. at 140. The State fails to cite to any case, and our
research reveals none, in which our courts have applied the balancing test
to a plea agreement that violates a statute. Thus, we choose to follow the
general rule and conclude, as in Lighty, that a plea agreement which
contravenes a statute is void and unenforceable.
Having addressed and rejected the State’s challenges to the reasoning
in Lighty, we hold that Miller’s plea agreement, which was conditioned on
the court’s ability to withhold judgment, was void ab initio. We,
therefore, affirm the trial court’s determination that Miller’s 1998 OWI
conviction in Cause No. 23 is void. Because the 1998 conviction is void,
the trial court properly granted Miller’s motion to dismiss the enhancement
in Cause No. 278.
Issue Two: Application of Criminal Rule 4(C)
We must now address Miller’s assertion that the trial court erred
when it denied his motion to dismiss Cause No. 23. Miller contends that
Criminal Rule 4(C) bars further proceedings in Cause No. 23 because the
State failed to try him within one year. The State responds that the rule
does not require dismissal because Cause No. 23 was closed in 1998 and
Miller has not been held to answer that criminal charge. The State argues,
in the alternative, that Miller acquiesced in the delay of his trial.
The right of an accused to a speedy trial is guaranteed by the Sixth
Amendment to the United States Constitution and by Article I, Section 12 of
the Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995).
This “fundamental principle of constitutional law” has long been zealously
guarded by our courts. Id. (quoting Castle v. State, 237 Ind. 83, 143
N.E.2d 570, 572 (1957)). To this end, the provisions of Indiana Criminal
Rule 4 implement the defendant’s speedy trial right. Id. Specifically,
Criminal Rule 4(C) provides in relevant part:
No person shall be held on recognizance or otherwise to answer a
criminal charge for a period in aggregate embracing more than one year
from the date the criminal charge against such defendant is filed, or
from the date of his arrest on such charge, whichever is later; except
where a continuance was had on his motion, or the delay was caused by
his act, or where there was not sufficient time to try him during such
period because of congestion of the court calendar[.]
If a defendant seeks or acquiesces in a delay that results in a trial date
beyond the one-year limit, the time limitations set by Criminal Rule 4 are
extended by the length of such delays. See Vermillion v. State, 719 N.E.2d
1201, 1204 (Ind. 1999).
Miller argues that because the parties’ plea agreement was void ab
initio, the State “could have tried him any time during the first year
after his arrest” in 1995. While Miller’s argument is creative, it is
fatally flawed. First, his argument requires us to assume that the State
could predict at the time the plea agreement was filed in 1995 that this
court would later hold that plea agreements conditioned upon withheld
judgments are void ab initio. Notwithstanding Miller’s arguments to the
contrary, Lighty was the first case to hold that plea agreements
conditioned on the court’s ability to withhold judgment are void ab initio.
Miller’s contention that the State could have proceeded to trial after the
parties had entered into an agreement, which both the parties and court
assumed was legally binding and enforceable at the time, is not well taken.
Moreover, at the time Lighty was decided, Cause No. 23 had been closed
for approximately two years. In 1995, the trial court accepted the
parties’ plea agreement and, pursuant to its terms, entered a judgment of
conviction in 1998 after Miller had successfully completed the agreement’s
conditions. As the trial court pointed out in denying Miller’s motion to
dismiss Cause No. 23, that case was “closed satisfactorily” in 1998. Under
these circumstances, we agree with the trial court that Criminal Rule 4(C)
does not require dismissal because Miller has not been “held on
recognizance or otherwise to answer” that charge since 1998.
Still, in support of his assertion that Criminal Rule 4 bars further
proceedings, Miller directs us to Taylor v. State, 233 Ind. 398, 120 N.E.2d
165 (1954). That case is inapposite. The dispositive issue in Taylor, 120
N.E.2d at 166, was whether the trial court improperly delayed judgment of
conviction and sentencing following a determination of guilt. In
particular, following a bench trial, the court withheld judgment in July
1952 and did not impose final judgment of conviction and sentence until
April 1953. Id. After concluding that the defendant was entitled to have
sentence pronounced with reasonable promptness, the court stated, “[a]n
American citizen is entitled to live without a Damocles sword dangling over
his head.” Id. at 167. Contrary to Miller’s assertion, he has not lived
with a Damocles sword hanging over his head because, unlike in Taylor,
Miller’s Cause No. 23 was closed in 1998.
In addition, by entering into the parties’ agreement in 1995, Miller
acquiesced in the delay of his trial. In Miller v. State, 650 N.E.2d 326,
329 (Ind. Ct. App. 1995), trans. denied, we held that when a defendant
enters into a plea agreement, any subsequent delay in trial is attributable
to the defendant. Specifically, in Miller, the defendant informed the
court that a plea agreement had been reached on August 17, 1992, and the
court rejected the plea agreement on March 10, 1993. Id. We held that the
one-year requirement under Criminal Rule 4(C) was extended during that
period of delay, which was attributable to the defendant. Id.
Here, the State filed the charges against Miller in Cause No. 23 on
January 11, 1995. When the parties filed their plea agreement with the
trial court on July 26, 1995, the one-year period under Rule 4(C) was
tolled, and any delay in prosecution attributable to the plea agreement is
chargeable to Miller. The trial court did not err when it denied Miller’s
motion to dismiss Cause No. 23.
The trial court properly determined that Miller’s conviction in Cause
No. 23 is void as a matter of law and, thus, the court did not err when it
granted Miller’s motion to dismiss the enhancement in Cause No. 278. In
addition, Criminal Rule 4(C) does not bar subsequent proceedings in Cause
No. 23. Thus, we conclude that the court also properly denied Miller’s
motion to dismiss Cause No. 23.
KIRSCH, J., and VAIDIK, J., concur.
 The State charged Miller with a Class D felony enhancement based
on its allegation that Miller had a prior conviction for OWI in 1994.
 Initially, the State argues that Miller failed to seek the
proper relief from the allegedly void judgment in Cause No. 23.
Specifically, the State asserts that instead of a motion to dismiss, Miller
should have filed a motion for relief from judgment under Indiana Trial
Rule 60(B). But the State has waived any objection to the form of Miller’s
motion because it failed to raise that objection to the trial court.
Moreover, we agree with Miller that a motion to dismiss is proper when a
defendant seeks discharge under Criminal Rule 4. See Randall v. State, 474
N.E.2d 76, 83-84 (Ind. 1985). Here, Miller’s motion to dismiss Cause No.
23 was based on an alleged Criminal Rule 4(C) violation.
 This court first stated in Robison, 359 N.E.2d at 924, that the
act of a trial withholding judgment “is not authorized by statute or rule.”
We reaffirmed that principle in Chissell, 705 N.E.2d at 506. But it is
important to note that both Robison and Chissell involved a discrete issue:
whether a party could appeal from a withheld judgment. However, in both
Lighty and in this case, the determinative issue is not whether withheld
judgments are final appealable orders but whether withheld judgments are
permissible following a plea of guilty.
 The Code also sets forth conditional deferment procedures that
are available to certain defendants in some alcohol cases. See Ind. Code §
9-30-9-3 (prior to conviction, court may conditionally defer proceedings in
a criminal action in which the use or abuse of alcohol is contributing
factor or material element of offense). But unlike Indiana Code Sections 12-
23-14.5-15 and 35-48-4-12, the alcohol deferment statute does not allow for
deferment of judgment following a plea of guilty.
 In February 2003, the House Courts and Criminal Code Committee
passed House Bill 1260, which, if enacted, would create Indiana Code
Section 35-38-1-1.5 and allow a trial court to “withhold judgment” under
certain circumstances. That such legislation has been proposed confirms
our conclusion that the judgment and conviction statute does not allow for
 The substance of the parties’ plea agreement in this case is not
covered by any of the current statutes which allow for deferred judgment
following a plea of guilty. Miller was not charged with possession of
controlled substance, so Ind. Code § 35-48-4-12 does not apply. And Ind.
Code § 12-23-14.5-15 is inapplicable because the parties’ plea agreement
was not filed with an established drug court. In addition, the parties’
agreement called for the trial court to withhold judgment for three years,
and once Miller successfully completed the conditions of the agreement, the
court entered judgment of conviction on the lesser A misdemeanor. Under
the other statutes, once a person successfully completes conditions, the
court shall dismiss the charges. See I.C. § 12-23-14.5-15(e); I.C. § 35-48-
 Miller argued to the trial court that the State was required to
try him within one year from the date this court decided Lighty. He
asserted, in theory, that when Lighty was decided the State was placed on
notice that its agreement with Miller was void. As a result, he contends
that the State should have re-opened the case and brought him to trial
within one year. Again, we do not find that argument persuasive given that
Miller’s case had been closed for two years when we decided Lighty.